Three judges of the 9th U.S. Circuit Court of Appeals questioned the theory during arguments over issues raised by former Councilman Ralph Inzunza, who was convicted of extortion, wire fraud and conspiracy, and by the government, which is contesting the acquittal on most charges of former Councilman Michael Zucchet.
Inzunza and Zucchet were convicted in 2005 along with former strip club owner Michael Galardi and his lobbyist Lance Malone. The men were implicated in a scheme to funnel cash to the councilmen, mostly in the form of campaign contributions, in exchange for their work to repeal a law that bans touching between strippers and patrons at San Diego strip clubs. The change would have increased profits at clubs.
In Tuesday's 90-minute hearing in Pasadena, the judges zeroed in on an issue defense lawyers have raised since the councilmen were indicted in 2003. It deals with the prosecutors' theory that the councilmen had deprived residents of their honest services by accepting campaign contributions in return for working to dismantle the no-touch law.
Judge Milan Smith Jr. questioned whether the honest services law was too vague and broad to be used in this case. When Congress changed the law several years ago, it left the term honest services undefined.
The government said the councilmen were given campaign contributions in exchange for doing a specific act, but Smith wondered aloud that many members of Congress accept donations and then do things on behalf of contributors.
Defense lawyers have long contended that the money Galardi gave was not hidden and the "scheme" prosecutors allege was not illegal, but rather typical of the relationship between contributors and elected officials.
Assistant U.S. Attorney Demetra Lambros responded that Congress' intention was clear and it wanted to prevent the kind of fraud in which she said the councilmen engaged.
"To trade money for a vote is illegal and any politician should know that," she said.
After the councilmen's trial, San Diego federal Judge Jeffrey Miller took the unusual step of acquitting Zucchet of seven of nine charges, and granting a new trial on the remaining two.
Miller concluded there was no clear connection between campaign contributions Zucchet received in 2001 and 2002 and actions he took in 2003 at the behest of Malone.
Judge Jay S. Bybee seemed to agree Tuesday, quizzing Lambros about the explicit link between the campaign money and Zucchet's actions.
A decision by the panel is not expected for months.
Galardi and Malone, who were convicted in Nevada on similar charges, are not appealing their cases and are serving federal prison sentences. Inzunza is free on bond pending the outcome of the appeal.